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death penalty news----ARK., OKLA., NEB., COLO., CALIF., WASH., USA
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Rick Halperin
2017-04-22 13:05:10 UTC
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Raw Message
April 22




ARKANSAS:

Gorsuch casts death-penalty vote in one of his 1st Supreme Court cases


Supreme Court Justice Neil M. Gorsuch cast his 1st consequential vote Thursday
night, siding with the court's other 4 conservatives in denying a stay request
from Arkansas death row inmates facing execution.

Hours later, the state executed 1 of the men, the 1st lethal injection carried
out there since 2005.

New justices have described being the final word on whether a death row inmate
is executed - often during a late-night, last-chance appeal to the Supreme
Court - as a time when the responsibility of the role crystallizes. Indeed, one
of the court's most solid death-penalty supporters, Justice Samuel A. Alito
Jr., flinched the 1st time he was faced with the choice. The day after his 2006
swearing-in, Alito joined the court's liberals in upholding a stay that kept
Missouri from going forward with an execution.

Gorsuch's reasoning for his vote in not known. Neither he nor the other
justices who turned down the request explained the decision. But Gorsuch was
sworn in on April 10, and he has had some time to study Arkansas'
well-publicized attempt to execute several inmates before a drug used in their
planned lethal injections expires.

The court's 4 liberals - Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia
Sotomayor and Elena Kagan - said they would have stayed the executions.

Breyer wrote that the case supports his call, which Ginsburg has joined, for a
review of whether the death penalty can be constitutionally applied.

"Why these 8? Why now? The apparent reason has nothing to do with the
heinousness of their crimes or with the presence (or absence) of mitigating
behavior," Breyer wrote. Instead, Breyer wrote, "apparently the reason the
state decided to proceed with these 8 executions is that the 'use by' date of
the state's execution drug is about to expire. In my view, that factor, when
considered as a determining factor separating those who live from those who
die, is close to random."

As expected, Gorsuch's decisions have been closely scrutinized. A new justice's
role on the court is only broadly sketched during confirmation hearings, and
each decision begins to fill in the outlines of a lifetime appointment.

Gorsuch has rejected stay-of-execution requests as a member of the U.S. Court
of Appeals for the 10th Circuit, but he has had limited exposure to the issue
of capital punishment.

During his Senate confirmation hearings, he was often asked about a passage in
a book he wrote in which he criticizes euthanasia and doctor-assisted suicide.
"All human beings are intrinsically valuable, and the intentional taking of
human life by private persons is always wrong," he wrote.

It is the phrase "by private persons" that was key to Gorsuch's response.

Some online commentators have questioned what Thursday night???s action says
about Gorsuch's "pro-life" credentials. He has a thin record on which his view
of a constitutional right to abortion could be assessed. But if he supports the
constitutionality of the death penalty and questions a constitutional right to
abortion, he would simply be reflecting the various positions on the court he
is joining.

The justice he replaced, Antonin Scalia, felt the same on capital punishment
and abortion. Liberals such as Breyer and Ginsburg are the opposite, supporting
abortion rights while raising doubts about the death penalty.

Gorsuch has faced an immediate immersion at the Supreme Court. He was sworn in
on April 10. He skipped the justices' private conference that week to prepare
for oral arguments that began last Monday.

Although he asked no questions in one oral argument, he was an active
participant in the other 6. Some analyses showed that he asked more questions
than many of his colleagues did in their first outings on the court, and he
displayed a confidence borne of his decade on the bench.

On Friday, he was scheduled to meet with the rest of the court to examine a
long list of cases that would be on the docket that begins in October. When it
had only 8 members, the court seemed to shy away from some controversial
topics.

But the new list is anything but neutral. They include cases involving gun
rights, voting rights and whether businesses can for religious reasons refuse
their wedding services to same-sex couples.

(source: Washington Post)

****************

Arkansas carries out 1st of several planned executions, but what's next?


This week in Arkansas, lives came down to minutes.

Ledell Lee never saw Friday. Less than an hour before a midnight deadline to
carry out the sentence, Arkansas officials learned the U.S. Supreme Court had
rejected his last appeals. The lethal injection began and Lee was dead by 11:56
p.m. Thursday - the 1st execution in the state since 2005.

Earlier in the week, Don Davis and Bruce Earl Ward saw the clock expire as
courts halted their executions just before midnight Monday. Stacey Johnson got
a reprieve Thursday as well.

Arkansas planned to execute 8 convicted murderers over 11 days this month and
the state will try again next week, with 2 scheduled for Monday and 1 on
Thursday. A 4th scheduled for Thursday currently has a stay in place. and
volume of executions has troubled capital punishment opponents - though they
took heart this week when the scheduled executions were stopped and when
Johnson's case was stayed.

Lee's execution was a blow, however.

Nina Morrison, a lawyer with the Innocence Project, worked until the last
moments leading up to Lee's execution and said the grim spectacle that played
out in Arkansas was unlike anything she'd seen in her 17 years of practicing
law and working capital punishment cases.

"Nobody can look at what happened in Arkansas and feel proud," Morrison said.
"It was a rushed, unfair and arbitrary process and we deserve better. The
families of the victims deserve better, the courts deserve better and the
defendants' lives we have in our hands deserve better."

Lee was convicted in the 1993 murder of 26-year-old Debra Reese, the mother of
a 6-year-old boy. She was robbed and strangled in her Jacksonville, Ark., home.
Prosecutors said Lee then beat her 36 times with a bat-like tire "thumper" her
husband had given her for protection.

Prosecutors came forward with evidence that Lee had previously committed
violent crimes against several other women, though he maintained his innocence
until his death.

But Morrison said the request for delaying Lee's execution centered on the need
for DNA testing that hadn't previously been available and that justice demanded
it to ensure an innocent man wasn't put to death.

The flurry of legal challenges was seen by Gov. Asa Hutchinson and Atty. Gen.
Leslie Rutledge as a stalling tactic to delay justice. A spokesman for Rutledge
said Friday that it was impossible to know if the scheduled executions of
Marcel Williams and Jack Jones on Monday would mirror this week's frantic pace.

J.R. Davis, spokesman for Hutchinson, said the men facing execution already
have had plenty of time to appeal and fight their cases.

"You start to worry whether or not this is a big hit on the judicial system.
You have all these last-minute appeals that are essentially thrown up against
the wall to see what sticks," Davis said. "These cases have been going on for
decades - and that is part of the process. You want to make sure a person is
guilty of the crime so you have the appeals set in place and there was time for
that."

But some of the legal challenges to Lee's execution were focused on the
methodology of the execution - namely the drugs used during lethal injections.

The state's supply of 1, midazolam, expires April 30. McKesson Corp. had filed
for a temporary restraining order last week to keep Arkansas from using its
product, vecuronium bromide, after the company said it had been misled because
the state had never said it planned to use the drug in executions.

A temporary restraining order was put into place on April 14, but 3 days later
the state Supreme Court removed it, agreeing with Rutledge that the judge who
issued it was biased because he had attended an anti-death penalty protest.

McKesson filed for a new restraining order, which was approved Wednesday but
then removed Thursday afternoon by the state Supreme Court.

"We believe we have done all we can do at this time to recover our product,"
the company said in a statement lamenting the ruling.

Michael Gerhardt, a constitutional law professor at the University of North
Carolina, said the drug manufacturer's unwillingness to be involved with
products used for the death penalty may be a way capital punishment becomes a
less viable form of justice as options diminish.

He said boycotts of companies that deal in drugs related to executions can make
supplies for the states even harder to obtain and that it's a tactic that may
be more effective than seeking to abolish the death penalty through the
legislative process.

The lack of supply has already hamstrung other states trying to conduct
executions. In Nevada, an $860,000 execution chamber was built last year after
being approved the Legislature in 2015, but it has yet to be used because the
state can't obtain the drugs used for lethal injections.

Arkansas' rush to complete its execution schedule - April 17 through 27 - was
set by Hutchinson in February when it was clear the drug would expire April 30.

Davis, the governor's spokesman, said the dates were important for the families
of the murder victims to see the will of juries carried out.

Lee's execution, he said, was justice.

Lee had a last meal. He took Holy Communion and did not have any last words.

The 2 scheduled to die Monday are Marcel Williams and Jones. Williams, 46, was
convicted of the 1994 rape and murder of 22-year-old Stacy Errickson. Jones,
52, was convicted of the murder of a bookkeeper, Mary Phillips, in 1995.

1 of the men scheduled to die Thursday, Jason McGehee, 40, currently has a stay
in place and is unlikely to face execution because the legal process would
extend beyond the April 30 deadline.

Public support for capital punishment, which peaked in the mid-1990s, when 80%
of Americans favored the death penalty, is now at its lowest level since 1972,
according to the Pew Research Center. Its poll in September showed 49% of
Americans supported executions for convicted murderers.

The debate is expected to continue as Arkansas begins the process again Monday.
And like last week, vigils are planned outside the governor's mansion in Little
Rock on Monday and Thursday.

The Rev. Steve Copley, chairman of the Coalition to Abolish the Death Penalty,
said he will be praying Sunday in church and will be attending the protests
Monday.

"I'll be remembering the victims and family of the victims, but also
remembering those on death row and the attorneys trying to make sure life isn't
taken from them," Copley said. "I'll be praying to ask God to be in the midst
of this situation as it happens."

(source: Los Angeles Times)

********************************************

Decency demands we take no chances with the death penalty: Opinion


The chance a terrorist will hijack my next flight to Atlanta is infinitesimal,
but I will submit to a virtual strip search when I board that plane. And I'll
do it every time to gain the assurance I've dodged one of the rarest
transportation calamities.

Many of us take similar precautions every day to prevent other unlikely
occurrences. We pay a premium for safety features on new cars. We gobble
multivitamins and dietary supplements to ward off diseases we have little
chance of contracting. We part with thousands for alarm systems and even more
for car and home insurance.

Our predilection to limiting the risk of rare misfortune extends to almost
every aspect of life. Except in our criminal justice system, which sometimes
seems designed to eliminate the risk that a defendant might be acquitted.

Which brings me to the death penalty and why we should abolish it, as state
Sen. Dan Claitor, R-Baton Rouge, and Rep. Terry Landry, D-New Iberia, propose.
I'm not sure what chance their bill has in the current legislative session, but
it's probably less than the likelihood that an innocent person sits today on
Louisiana's death row.

The chance that Louisiana -- or any of the 30 other states with the death
penalty -- might put an innocent person on death row is 4 times greater than
your chance of being killed in an auto accident. It's almost 50 times greater
than your chance of drowning.

How do we know this? In an impressive, comprehensive study published in the
"Proceedings of the National Academy of Sciences" (PNAS) in 2014, 4 researchers
concluded 4.1 % of those in death row prison cells in the United States are
innocent. And, they added, "it is likely that we have an undercount."

We also know this because, since 1973, 157 death-row inmates have been
exonerated. The most recent was a Louisiana man, Rodricus Crawford, finally
exonerated on April 17 when the state Supreme Court dismissed all charges
against him.

The study's authors said that because of intense scrutiny in capital cases,
wrongful executions (versus wrongful sentencing) are rare but probable. "With
an error rate at trial over 4%," they caution, "it is all but certain that
several of the 1,320 defendants executed since 1977 [that number is now 1,448]
were innocent."

This suggests that about 116 of the approximately 2,900 people serving on death
row in the United States could be innocent.

If you had a 4 % (1 in 25) probability of dying in a plane crash (it's actually
1 in 9,821), you'd be a fool to fly anywhere. If you had a 4 % probability of
dying in a car wreck (it's 1 in 645), you would never leave your house.

Too many judges and prosecutors, however, are satisfied with a 4 percent error
rate in handing down death sentences.

Argue all you want about the immorality of the government killing people.
Protest the death penalty because of the cost of trying and housing death-row
inmates versus those sentenced to life without parole. Those and other
arguments resonate with me and others but are secondary to the near certainty
that we have condemned dozens of innocent people to death row.

Lest you conclude the answer to this outrage is to sentence more people to
prison for life, consider what National Geographic blogger Virginia Hughes
observed in 2014 about the aforementioned study: "Of all of the people found
guilty of capital murder, less than 1/2 actually get a death-penalty sentence.
And when juries are determining whether to send a defendant to death row or to
life in prison, surveys show that they tend to choose life sentences when they
have 'residual doubt' about the defendant's guilt. That means, then, that the
rate of innocent defendants serving life in prison is higher than those on
death row. 'They are sentenced,' the [PNAS] authors write, 'and then
forgotten.'"

The truth is that the almost weekly release of some inmate, jailed for decades
for a crime he did not commit, doesn't spur us to action or even indignation.
And the knowledge that 4 % of those on death row are likely innocent causes us
little shame.

In other words, society is apathetic about the appalling injustices of the
criminal justice system because many of don't see inmates as humans and we see
little personal risk of being railroaded into prison, much less on death row.

If we want to continue killing inmates, we should do everything possible to
eliminate the risk of wrongful conviction. We should fully fund indigent
defense. Judges should insist on the highest standards of evidence before
convicting anyone. No one should be sent to prison on the testimony of 1
witness. And courts must rein in the abuse of plea bargains.

As Edmund Burke wrote in 1777, "A conscientious man would be cautious how he
dealt in blood." Put another way, a wise and humane society would take no
chances when killing its citizens.

(source: Opinion; Robert Mann, an author and former U.S. Senate and
gubernatorial staffer, holds the Manship Chair in Journalism at the Manship
School of Mass Communication at Louisiana State University----New Orleans
Times-Picayune)






OKLAHOMA:

Death Penalty Sought In Deputy's Death


A man suspected of fatally shooting an Oklahoma deputy was charged Thursday
with murder, and the district attorney later vowed she'll seek the death
penalty against him because of the "particularly heinous, atrocious and cruel"
nature of the crime.

Nathan LeForce, 45, was charged Thursday in Logan County with 1st-degree
murder, larceny of a vehicle and armed robbery, court records show. Those
records don't list an attorney for him, and he remains jailed.

Logan County Deputy David Wade, 40, died Tuesday after he was shot while
serving an eviction notice at a home near Mulhall, about 50 miles north of
Oklahoma City. Wade was shot several times, including in the face, and returned
fire before radioing in for help.

Video from Wade's body-worn camera captured LeForce approaching Wade with a
raised handgun and firing at the deputy, according to charging documents filed
in court Thursday. After the 1st shot, as "Wade goes down and is obviously
suffering from a gunshot wound," several more gunshots could be heard in rapid
succession, the documents said.

Authorities said LeForce then took Wade's patrol vehicle and drove at a high
speed to a convenience store, where he stole another car at gunpoint, according
to the affidavit. That car was found abandoned near Guthrie, where LeForce was
later found hiding in an outbuilding and surrendered to police.

After LeForce appeared before a judge, Logan County District Attorney Laura
Thomas said in a statement to The Associated Press that she'll prepare a death
penalty case because of the brutality of the crime.

"Not all 1st degree murder cases qualify for the death penalty in Oklahoma.
This is one that does," Thomas said in a statement. "I'm angry our deputy was
murdered. I'm angered at that portion of society that is already looking for a
way to justify the unjustifiable and finding excuses for the inexcusable."

The Oklahoma State Bureau of Investigation said earlier Thursday that the gun
used in the shooting has not been found. Agency spokeswoman Jessica Brown said
law enforcement agencies are still searching for the gun to find out if it had
been used in other crimes and to prevent a child from finding it first.

(source: Associated Press)






NEBRASKA:

Legislature debates confidentiality of lethal drug producers


A bill to protect the confidentiality of individuals or companies involved in
the distribution or manufacture of lethal injection drugs on death row went
through hours of debate Thursday.

LB 661, introduced by Sen. John Kuehn of Heartwell, is also known as a "shield
law" to protect anyone involved in the manufacturing of lethal injection drugs
from threats or persecution.

"Keeping the identity of manufacturers confidential to ensure access of these
drugs, to prevent further drugs from being removed from the market, to ensure
safe medication to all citizens, is the greater good," Kuehn said.

Other states with similar shield laws include Virginia, Arkansas, Missouri,
Georgia and Ohio. Many others, such as Oklahoma and South Carolina, have also
tried to implement this type of shield law.

According to the bill's proponents, states with the death penalty have
difficulty obtaining lethal injection drugs from domestic suppliers.

Suppliers don't want the bad publicity of being associated with manufacturing
and distributing these drugs. This results in states having to shop other
countries for the drugs.

Nebraska bought a lethal injection drug in 2015 called sodium thiopental, from
Harris Pharma, a distributor in India. The Food and Drug Administration said
Nebraska could not legally import the drug and the shipment never made it to
the state.

Opponents of the bill said confidentiality would inhibit accountability for
companies who make the drugs.

Sen. Ernie Chambers of Omaha was particularly against full anonymity for such
companies.

Chambers, a well-known opponent of the death penalty, used his time to speak
against the death penalty. However, he also spoke against hiding the identity
of lethal injection drug manufacturers.

"We all know good and well why it's important to know the source of something,"
Chambers said. "If these bad drugs continue to show up, you need to trace it
back and find the compounding pharmacy that's responsible."

Chambers was referring to the possibility the drug might be proven cruel or
ineffective. People would need to know where it came from to hold that person
or company responsible.

Nebraska voters decided last year to reinstate the death penalty, after the
Legislature narrowly repealed it the year before. Legislators in support of LB
661, like Sen. Mike Groene of North Platte, said the proposed shield
legislation would let capital punishment work for the Nebraskans who voted it
back in.

"I believe in justice," Groene said. "I believe in punishing evil that exists
in this world."

Groene said anonymity would allow the state to be able to obtain, and if
necessary, use the death penalty drugs again.

Nebraska has not used capital punishment since 1997.

There was no vote or action taken on the bill.

(source: The North Platte Bulletin)






COLORADO:

Hearings start Monday in death-penalty case of ex-Fort Carson soldier


A marathon week of hearings is set to begin Monday in El Paso County's 1st
death penalty case in a decade.

5 consecutive days have been cleared in a 4th Judicial District courtroom for
attorneys to argue motions in the case against double-murder suspect Glen Law
Galloway, who's accused in the back-to-back fatal shootings last year of his
ex-girlfriend and a homeless man.

Fourth Judicial District Judge Gregory Werner set aside the week in
anticipation of dozens of legal filings in what will be a hard-fought courtroom
contest. It's unclear whether all that court time will actually be filled.

El Paso County prosecutors will be joined by Dan Edwards of the Colorado
Attorney General's Office, who helped prosecute the death penalty case against
Aurora theater shooter James Holmes. Galloway's public defenders will be joined
by Dan King of the public defender's death penalty team.

King was Holmes' lead attorney and also helps represent admitted Planned
Parenthood shooter Robert Lewis Dear Jr., whose prosecution on suspicion of
killing three people and wounding nine on Nov. 27, 2015, remains on indefinite
hold while Dear receives treatment at the Colorado State Mental Health
Institute at Pueblo.

Galloway, 45, an ex-Fort Carson soldier, faces multiple counts of 1st-degree
murder in the slayings of his ex-girlfriend Janice Nam and a homeless man named
Marcus Anderson, records show.

The 2 were fatally shot on consecutive days in May, several months after
Galloway cut off an ankle monitor and went into hiding in the wake of a
conviction for stalking Nam, court records show.

Police and prosecutors haven't disclosed whether they have discovered a motive
that links the deaths.

The last time El Paso County prosecutors pursued the death penalty was 2007,
when the office sought the death of cop killer Marco Lee. He pleaded guilty in
exchange for a life sentence in prison without the possibility of parole.

2 other death penalty prosecutions are pending in the 18th Judicial District,
comprising Arapahoe, Douglas, Elbert and Lincoln counties, but recent efforts
suggest prosecutors face an uphill battle.

2 recent attempts to obtain the death penalty - including against Holmes -
failed after juries instead imposed life terms, raising questions about the
millions spent in the pursuit.

Convicted murderer and rapist Gary Lee Davis was the last death row inmate to
be executed in Colorado, in 1997. He is the only Colorado inmate to be executed
since the death penalty was reinstated in 1975.

(source: The Gazette)






CALIFORNIA:

Judge in Dekraai Case Says He May Consider Dropping Death Penalty


The judge handling the sentencing trial for mass murderer Scott Evans Dekraai
said Friday that misuse of jailhouse informants by Orange County prosecutors
and Sheriff's deputies may cause him to consider "the nuclear option," throwing
out the death penalty in the case.

"What has previously been an almost unthinkable option is no longer
unthinkable," said Judge Thomas Goethals at a hearing Friday morning.

The hearing was part of the penalty phase of the trial, which will determine
whether Dekraai, who shot 8 people at a Seal Beach hair salon in 2011 and pled
guilty to the murders in 2014, will receive a life sentence or the death
penalty.

Although it began as a murder trial, Dekraai's case has since grown into a
years-long "jailhouse snitch scandal" that has sparked U.S. Department of
Justice, state Attorney General and Orange County Grand Jury investigations.
They're looking into how the Sheriff's Department and District Attorney's
office used jailhouse informants to elicit confessions from criminal
defendants, without the knowledge of the defendants or their attorneys.

Sanders has argued the violation of his client's rights is so egregious he
should be spared the death sentence and be sentence to life in prison.

For months, Goethals has expressed frustration with the pace at which Sheriff
Sandra Hutchens' department has produced discovery documents related to the
jailhouse informants program. At one point he threatened to hold her in
contempt of court.

Now Goethals wants attorneys to establish at a May 23 evidentiary hearing,
whether or not the Sheriff's Department has, over the course of the Dekraai
case, attempted to cover up the informant program by intentionally destroying
or withholding key documents.

Specifically, Goethals wants to know why there are months-long gaps in entries
from the Special Handling log, records which could show how informants were
moved from cell to cell and which inmates they were put near and later provided
information about.

Sanders, in his latest motion filed in March, points to the fact that
prosecutors have only "been able to locate Special Handling logs for a period
of a mere 7 months of Dekraai's 65 months of incarceration" and to a 2-year gap
in entries in records tracking 2 informants who lived in the same module as
Dekraai.

"It's hard for me to imagine that a staff full of competent investigators can't
get to the bottom of what happened to the Special Handling logs," Goethals said
at Friday's hearing.

In the motion, Sanders outlined his argument for why he believes Orange County
Sheriff's deputies not only were openly and actively encouraged to cultivate
jailhouse informants to aid prosecutors, but the department also tried to cover
its tracks as revelations about the informant program unfolded in court.

The judge also wants attorneys to establish whether or not, as Sanders has
alleged in court briefs, Hutchens asked the county Board of Supervisors to
change a policy for document retention that would allow the department to
destroy documents that included records about jailhouse informants.

Sanders argues the fact that the department sought approval from the
supervisors is evidence of "a broader effort to align policies with misleading
statements about the use of informants...and to eliminate inconsistent evidence
that could further embarrass the agency," according to a motion he filed Feb.
9.

In early 2016, the supervisors suspended the policy in order to preserve the
informant records although it is unknown whether any records were destroyed
while the policy was in effect. The county's attorneys say the board's action
didn't alter its past records retention policy and insist nothing improper
occurred.

Attorneys will also discuss Sanders' claim that former Assistant District
Attorney Dan Wagner intentionally delayed releasing records from the special
handling log at Theo Lacy Jail to avoid tipping off Sanders to contradictions
in testimony by 2 deputies that would help him in another case.

The last evidentiary hearing Goethals ordered lasted more than 4 months.

Goethals said he hopes this hearing won't last that long and said he wants to
avoid any more debate over whether a jailhouse informant program exists, as the
Sheriff's Department has repeatedly denied.

"The debate about what is going on in the Orange County jails is over,"
Goethals said. "We are not going to spend a lot of time going down that rabbit
hole."

(source: voiceofoc.org)






WASHINGTON:

It's time to abolish the death penalty


The time is right. The time is now. This issue has been discussed for more than
20 years yet this inhumane, barbaric action still exists.

The issue came before the state Legislature this session but, disappointingly,
never passed the committee despite encouragement by Gov. Jay Inslee and
Attorney General Bob Ferguson. The death penalty dehumanizes us, encourages
violence and is arbitrarily unjust. Do we want to stand with China, Saudi
Arabia and other rogue nations in condoning the murder of human beings? We are
just as bad as the criminal in this instance.

Capital punishment does not deter crime nor does it lower recidivism. It drains
our resources and wastes tax dollars as well as wastes lives. Innocent people
have been put to death. When Gov. Inslee placed a moratorium on executions in
2014, he asked for public conversation. Let's keep the conversation going.
Let's join other civilized nations who have abolished the death penalty. Let's
do it now. The time is right. For more information visit the Fellowship of
Reconciliation web site: olympiafor.org.

Sandra Ware, Olympia

(source: Letter to the Editor, The Olympian)






USA:

Here's Why The Feds Banned 2 States' Death Penalty Drugs----The FDA banned
shipments of execution drugs states have been trying to get for months.
BuzzFeed News obtained the letter that shows why.


On Thursday, the federal government formally blocked 2 shipments of a massive
amount of execution drugs on their way to Texas and Arizona.

The decision to block the shipments came after months of legal arguments
back-and-forth between the states and the Food and Drug Administration. In
announcing the conclusion, the FDA did not include its full decision or the
reasons it came to its conclusion that the drugs can't enter the United States.

But the full decision shows the FDA said its hands were tied. BuzzFeed News
obtained a redacted copy on Friday through an open records request.

In the decision, the FDA pointed to a 2012 court decision that requires the
government block shipments of sodium thiopental, an outdated anesthetic, when
the shipments appear to violate the law.

The states argued "that [the case] was 'wrongly decided,'" FDA importer
Alexander Lopez wrote to Texas. "But FDA is bound by the terms of the order
issued by the District Court in that case."

"We interpret the order to mean what it says: namely, that FDA is required to
refuse entry to thiopental produced abroad when it appears that the thiopental
is misbranded or an unapproved new drug."

There are no longer any FDA-approved manufacturers of sodium thiopental. Years
ago, the sole supplier stopped making the drug because states were using it in
lethal injections.

So in 2015, the states turned to a man in India who has made more than $100,000
selling execution drugs to states that have never been able to use his
products. He placed a label on the vials that carries the disclaimer that they
are "For law enforcement purpose only." Texas and Arizona argued the drugs
should be allowed in due to a law enforcement exception.

The FDA responded that a law enforcement exception can't apply, because the
drugs will still be used on humans.

"The law enforcement exemption could not have been intended to apply to lethal
injection, because FDA issued the regulation ... in 1956, well before any state
used lethal injection as a method of execution," Lopez wrote.

If states want to import the drug, they could attempt to have the drug approved
- a process that could take years. They argued approving a drug for lethal
injection would be absurd, as the approval process requires clinical trials and
testing - something that has not been done for lethal injection.

"Here, it is not absurd to suggest that the [law] requires a drug to be shown
to be safe and effective for use under the conditions suggested in its
labeling," Lopez wrote.

"There are numerous situations where it is difficult to design appropriate
clinical trials, such as testing a treatment for anthrax infection or plague.
In such cases, FDA regulations may allow flexibility, or trials may differ from
what scientists generally envision, but FDA's statutory authority remains the
same."

If the states wanted to import the drugs, the FDA said they either needed to
get the drug approved, or go to court to lift the 2012 order.

Litigation seems likely. Over the past year and a half, both states have
indicated publicly that they would sue if the drugs were denied. Texas has
requested the FDA give them time to seek a court order before the drugs are
destroyed or returned to India. The FDA said the states have 90 days to export
or destroy the drugs.

(source: buzzfeed.com)

*********************

The Fight for Disability Rights Must Extend to Death Row----Why didn't more
disability rights groups work to stop the execution of Ledell Lee in Arkansas?


Thursday night the state of Arkansas executed Ledell Lee. Lee was sentenced in
1995 for the murder of Debra Reese in a trial marked by numerous examples of
the unequal treatment that the most vulnerable defendants routinely experience
in the legal system.

During the trial, Lee's lawyer was so drunk he literally started babbling the
words "blah blah blah." The judge and prosecutor were having a sexual affair at
the time, and would later marry. Microscopic analysis of hair found at the
scene seemed to match Lee's, but the American Civil Liberties Union says that
the "unsophisticated" method of analysis used in the case has been determined
to be scientifically unsound. Both the ACLU and the Innocence Project sought
stays of execution until a DNA test could be performed. Lee has always
maintained his innocence. They have no evidence one way or another as to what
that DNA test would have shown. The point is: neither did the state of
Arkansas.

Like DNA testing, science only helps if states choose to apply it.

Lee was also disabled. He had fetal alcohol syndrome, a condition that can lead
to significant intellectual disability. The extent of this incapacity, like his
DNA, was never tested. It is possible, according again to the ACLU, that his
disability exempted him from the death penalty under the Supreme Court decision
in Atkins v. Virginia, a decision that excluded people with intellectual
disabilities from execution. Furthermore, as I wrote for Pacific Standard a few
weeks ago, in Moore v. Texas, the Court had explicitly endorsed the principle
that determination of disability should be held to the best practices of the
scientific community, rather than relying on guesswork or bias. Moore v. Texas
is a good ruling, but, like DNA testing, science only helps if states choose to
apply it.

Was Lee sufficiently disabled - a terrible framing, but that's what the law
requires - to have his life spared? We don't know. His lawyer did not pursue
that angle of defense. Courts from Arkansas to Washington, D.C., ultimately
refused requests from the ACLU and the Innocence Project to make such a
determination before the execution.

Arkansas is in a rush to kill people. The state's lethal injection drugs are
expiring. Some of the condemned will be guilty, but not all. Some of the
condemned will be disabled, but not all. The violence of the state always falls
hardest on those multiply marginalized by otherness, whether race, class,
gender identity, disability, religion, or other categories of difference.

The Supreme Court Sets a New Precedent on the Death Penalty and Disability

I cover the disability rights community. Well-resourced organizations need to
get more involved in fighting for the Ledell Lees of America. The Arc, an
organization that promotes and protects the human rights of people with
intellectual and developmental disabilities, sent a clemency letter to Governor
Asa Hutchinson of Arkansas. More groups should emulate the Arc's commitment to
serving the most marginalized disabled Americans. Most other well-funded and
-connected disability rights organizations and leaders, though, said nothing.
They aren't focused on the death penalty. Lee is not the most telegenic figure
around which to galvanize sympathetic fundraising. You can't have a telethon -
not that telethons are so great - for the Ledell Lees of this world. The
silence of the movement, focused on sympathy for cute kids, not protection for
convicted men, reveals their priorities.

It is precisely at the margins of society, in case of violence and abuse at
both state and private hands, where our movement must concentrate our efforts.
The fight for disability rights goes on. But not for Ledell Lee.

(source: David Perry, Pacific Standard Magazine)

********************

Gorsuch casts death-penalty vote in one of his first Supreme Court cases


Supreme Court Justice Neil M. Gorsuch cast his first consequential vote
Thursday night, siding with the court's other 4 conservatives in denying a stay
request from Arkansas death row inmates facing execution.

Hours later, the state executed one of the men, the 1st lethal injection
carried out there since 2005.

New justices have described being the final word on whether a death row inmate
is executed - often during a late-night, last-chance appeal to the Supreme
Court - as a time when the responsibility of the role crystallizes. Indeed, one
of the court's most solid death-penalty supporters, Justice Samuel A. Alito
Jr., flinched the 1st time he was faced with the choice. The day after his 2006
swearing-in, Alito joined the court's liberals in upholding a stay that kept
Missouri from going forward with an execution.

Gorsuch's reasoning for his vote in not known. Neither he nor the other
justices who turned down the request explained the decision. But Gorsuch was
sworn in on April 10, and he has had some time to study Arkansas'
well-publicized attempt to execute several inmates before a drug used in their
planned lethal injections expires.

The court's 4 liberals - Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia
Sotomayor and Elena Kagan - said they would have stayed the executions.

Breyer wrote that the case supports his call, which Ginsburg has joined, for a
review of whether the death penalty can be constitutionally applied.

"Why these 8? Why now? The apparent reason has nothing to do with the
heinousness of their crimes or with the presence (or absence) of mitigating
behavior," Breyer wrote. Instead, Breyer wrote, "apparently the reason the
state decided to proceed with these 8 executions is that the 'use by' date of
the state's execution drug is about to expire. In my view, that factor, when
considered as a determining factor separating those who live from those who
die, is close to random."

As expected, Gorsuch's decisions have been closely scrutinized. A new justice's
role on the court is only broadly sketched during confirmation hearings, and
each decision begins to fill in the outlines of a lifetime appointment.

Gorsuch has rejected stay-of-execution requests as a member of the U.S. Court
of Appeals for the 10th Circuit, but he has had limited exposure to the issue
of capital punishment.

During his Senate confirmation hearings, he was often asked about a passage in
a book he wrote in which he criticizes euthanasia and doctor-assisted suicide.
"All human beings are intrinsically valuable, and the intentional taking of
human life by private persons is always wrong," he wrote.

It is the phrase "by private persons" that was key to Gorsuch's response.

Some online commentators have questioned what Thursday night's action says
about Gorsuch's "pro-life" credentials. He has a thin record on which his view
of a constitutional right to abortion could be assessed. But if he supports the
constitutionality of the death penalty and questions a constitutional right to
abortion, he would simply be reflecting the various positions on the court he
is joining.

The justice he replaced, Antonin Scalia, felt the same on capital punishment
and abortion. Liberals such as Breyer and Ginsburg are the opposite, supporting
abortion rights while raising doubts about the death penalty.

Gorsuch has faced an immediate immersion at the Supreme Court. He was sworn in
on April 10. He skipped the justices' private conference that week to prepare
for oral arguments that began last Monday.

Although he asked no questions in one oral argument, he was an active
participant in the other 6. Some analyses showed that he asked more questions
than many of his colleagues did in their first outings on the court, and he
displayed a confidence borne of his decade on the bench.

On Friday, he was scheduled to meet with the rest of the court to examine a
long list of cases that would be on the docket that begins in October. When it
had only 8 members, the court seemed to shy away from some controversial
topics.

But the new list is anything but neutral. They include cases involving gun
rights, voting rights and whether businesses can for religious reasons refuse
their wedding services to same-sex couples.

(source: Washington Post)

***************

Arkansas rushed to put to death Ledell Lee despite widespread concerns around
the use of capital punishment in America


Arkansas executed Ledell Lee on Thursday night, after it fought and won a
complex and sometimes confusing legal battle. The state executed him in spite
of Lee's insistence that he was not guilty of murdering Debra Rees, a crime
committed more than 20 years ago. It did so despite doubts about whether he had
sufficient intellectual capacity to be "eligible" for the death penalty.

The state rushed to put Lee to death before its supply of midazolam expired,
claiming that it had a compelling interest in carrying out the "lawful"
decision of the jury which sentenced him and that the execution would bring
closure to the Rees family. Yet the way it went about doing so hardly seems
likely to bring consolation to those who grieve at that family's terrible loss
- and raises many concerns about the potential miscarriage of justice.

A 2014 report by the National Academy of Sciences estimated that 1 in every 25
people given a death sentence are in fact innocent of the crime for which they
are sentenced. Moreover, we know that more than 150 people have been exonerated
since the death penalty???s return in 1976.

Because of such problems, public confidence in the fairness of the death
penalty process is eroding. Thus, a 2013 Gallup poll found that only 52% of the
American public believed that the death penalty was administered fairly.

These doubts surfaced in dramatic fashion when Arkansas announced its plan to
execute 8 people in 10 days and explained that it was doing so to meet the
deadline imposed by its drug expiration problem.

The problems that plague the death penalty system have persisted for decades.
It was 45 years ago, in Furman v Georgia, that the US supreme court called
attention to the way in which death sentences are carried out in the US and
halted all executions in this country. It did so not because it found anything
inherently problematic about the death penalty. Instead it focused on
difficulties in the way it was administered.

The court found defects in the process through which some capital defendants
were sentenced to death while others were spared. It described death sentencing
as fraught with arbitrariness. As Justice Potter Stewart put it in his
concurring opinion: "These death sentences are cruel and unusual in the same
way that being struck by lightning is cruel and unusual."

The court allowed the death penalty to resume four years after Furman. It did
so once it was satisfied that procedures had been put in place to insure that
when juries made decisions in death cases that they would be given sufficient
guidance so that sentences would no longer be imposed or carried out
arbitrarily.

Indeed, because death is different in kind from any other punishment, the court
insisted that states wishing to execute would have to insure that heightened
standards of reliability, what some have called "super due process", would be
accorded to those accused and convicted of capital crimes.

While much has changed in death penalty jurisprudence and in American attitudes
toward that punishment since the mid-1970s, when those standards were put in
place, the continuing legitimacy of capital punishment depends on insuring that
they are met.

Responding to those who questioned Arkansas' assembly-line style of execution,
Governor Asa Hutchinson acknowledged that he would have preferred a more
deliberate pace but insisted that the time had come to bring closure to the
families of those who had been murdered so long ago.

As he put it in a recent television interview: "There's been a 25-year
nightmare for the victims that had to deal with this and now it's time for
justice to be carried out."

After Thursday night's execution, Leslie Rutledge, Arkansas' attorney general,
reiterated this concern, saying: "I pray this lawful execution helps bring
closure for the Reese family."

But surely it was no favor to those who mourn the loss of a loved one to
proceed with an execution without having resolved all doubts about the guilt of
the condemned. And it can hardly bring the solace they so profoundly deserve to
know that Lee's execution was shadowed by so much controversy.

Instead of focusing on the loss that occasioned last night's execution, the
world's attention was focused instead on what seemed to be the unseemly process
that led to it.

Justice Stephen Breyer, who dissented from the supreme court's last-minute
decision to allow Lee's execution to proceed, got it right when he highlighted
"the arbitrariness with which executions are carried out in this country" and
noted that allowing the expiration date of Arkansas' supply of midazolam to be
"a determining factor separating those who live from those who die is close to
random".

When Arkansas put Lee to death, it seems that lightning struck again.

(source: Associated Press)

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